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QOCS applies to appeals, High Court rules

CPR 44.13 should be interpreted in a way that “more justly achieves what is plainly the purpose of the regime as divined from the Rules”, says Edis J.

Parker v Butler [2016] EWHC 1251 (QB) (26 May 2016)

Key Point

  • QOCS protection extends to appeals

Full Judgment

This costs dispute arose out of a road traffic accident, which occurred on 10 April 2013. The claim was of low value, and was allocated to the fast track.

On 3 March 2015, the claimant’s personal injury claim was dismissed by HHJ Pemberton. The claimant’s appeal against his claim’s dismissal was then also dismissed, albeit for different reasons, by Edis J.

Having successfully resisted the appeal, the defendant, who was funded by his insurer, sought an order for his costs. Because the Claims Notification Form notification was dated 12 July 2013, the current fixed costs regime had not yet come into effect. The costs were therefore summarily assessed by Edis J to the value of £2,795.21, including VAT. However, because no damages or interest had been recovered in proceedings, CPR 44.14 required that the court should give its permission before the costs order could be enforced (paragraphs 5 – 7).

The issue to be determined was:

In a case where a claimant has the benefit of Qualified One Way Costs Shifting (QOCS) at trial, is he subject to the ordinary rules as to costs on a first appeal to an appeal court at least where no other order is made under CPR 52.9A?

The accident at the heart of this dispute occurred on 10 April 2013, just 10 days after the Qualified One-way Costs Shifting (QOCS) was introduced for personal injury claims. It was therefore common ground between the parties that QOCS applied at first instance (paragraph 7).

However, before he could enforce his own costs order arising out of this dispute, Edis J was required to evaluate the scope of QOCs regime. In this matter, was the claimant’s appeal part of “proceedings which include a claim for damages” – as per CPR 44.13? Alternatively, should the claimant’s appeal be treated as being separate from those proceedings, and therefore not subject to QOCS? Perhaps surprisingly, counsel for neither side of the dispute had been able to locate an authoritative decision on this point (paragraphs 8 – 10). They therefore made their augments by reference to other CPR provisions, or by drawing analogies with cases only tangentially relevant to the facts in hand.

The defendant’s counsel pointed out that, under CPR 52.9A, an appeal court has the power to make a costs order regarding that appeal, even when costs recovery is normally limited or excluded at first instance. In essence, counsel argued that CPR 52.9A would not be needed if all appellate proceedings covered by the rule were subject to the same costs regime as proceedings at first instance (paragraphs 11 – 12).

For their part, counsel for the claimant drew Edis J’s attention to an unreported decision, available on Westlaw, of Master Haworth in the SCCO on 31 October 2014. In this earlier case, Master Haworth had decided that, for the purposes of the QOCS provision, an appeal was part of same proceedings at trial. However, unlike this current dispute, this earlier decision had centered on a party’s lack of QOCS eligibility, rather than their entitlement to it. Edis J therefore noted that Master Haworth’s decision was “obiter and is persuasive only in any event” (paragraph 13).

Assisted by counsel, Edis J then briefly considered whether Akhtar v Boland [2014] EWCA Civ 943 might assist this current dispute, before quickly concluding that it did not. He then considered both Hawksford Trustees Jersey Limited v Stella Global UK Limited and another (No 2) [2012] EWCA Civ 987 and Wagenaar v Weekend Travel Limited [2014] EWCA Civ 1105. Neither of these case, Edis J observed, resolved the present issue. However, he suggested that Wagenaar did establish that the term “proceedings” in relation to CPR 44.13 should be constructed by reference to the purpose of the Jackson reforms from which the rule arose: i.e. mainly in relation to QOCS. Additionally, Hawksford had indicated that the question of whether an appeal is part of the same proceedings as the trial “will depend upon the context in which the question arises and the purpose of any provisions which have to be construed in order to answer it” (paragraphs 14 – 15).

Ultimately, Edis J decided that the costs order he had previously made should not be enforced. In effect, he decided that QOCS could be applied to appeals as well as trials (paragraph 20).

In doing so, and following the approach in Wagenaar, Edis J said that not every step in proceedings arising out of a claim for personal injury should be regarded as “proceedings” for the purpose of CPR 44.13, noting that the words used in that specific CPR provision were narrowly constructed. The essence of that rule, he said, was that it related to claims bought by a claimant against one or more defendant which included a claim for damages for person injuries. This scenario could be distinguished, for example, from a claim by a defendant against a third party for a contribution to - or an indemnity against - such a claim. These latter scenarios, he implied, might fall outside the narrowly-defined scope of CPR 44.13 (paragraph 16).

When reaching his decision in this case, Edis J also considered it relevant that “there is no difference between the nature of the claimant at trial and the appellant on appeal. He is the same person.” The QOCS regime, Edis J noted, has been created for claimant’s benefit as the best way to protect his access to justice to pursue a personal injury claim. “To construe the word ‘proceedings’ as excluding an appeal which was necessary if he were to succeed in establishing the claim which had earlier attracted costs protection would do nothing to serve the purpose of the QOCS regime.” Additionally, Edis J said, following Hawksford, the meaning of CPR 44.13 should be constructed in a way that “more justly achieves what is plainly the purpose of the regime as divined from the Rules” (paragraph 17).

In reaching that conclusion, Edis J disagreed with the defendant’s counsel regarding whether the correct construction of CPR 44.13 should be influenced by CPR 52.9A. CPR 52.9A, he said, covers situations where there are no special rules governing costs in the appeal court, but there are in proceedings below. Having decided that CPR 44.13 did, in fact, cover both proceedings at trial and appeal, Edis J effectively concluded that CPR 52.9A was therefore not relevant to this dispute (paragraph 19).

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